Case 3:08-cv-00824-JSW Document 90 Filed 02/28/2008 Page 1 of 54 Joshua Koltun ATTORNEY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Joshua Koltun (Bar No. 173040) Attorney 101 California Street Suite 2450, No. 500 San Francisco, California 94111 Telephone: 415.680.3410 Facsimile: 866.462.5959 joshua@koltunattorney.com Attorney for purported Related Third Party and/or Defendant Daniel Mathews BANK JULIUS BAER & CO. LTD, a Swiss Entity; and JULIUS BAER BANK AND TRUST CO. LTD, a Cayman Islands entity, v. Plaintiffs, WIKILEAKS, an entity of unknown form, WIKILINKS.ORG, an entity of unknown form; DYNADOT, LLC, a CALIFORNIA limited liability corporation, and DOES 1 through 10, inclusive, Defendants. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION I, Daniel Mathews, declare as follows: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV08-0824 JSW DECLARATION OF DANIEL MATHEWS 1. I am a mathematics graduate student at Stanford University with a longstanding interest and involvement in human rights activism. I also earned a law degree in Australia, my native country. I have personal knowledge of the following facts (except where I state or otherwise make clear the limitations of my knowledge). 2. When I learned that a project called Wikileaks claimed to be developing an Declaration of Daniel Mathews CV08-0824 JSW
Case 3:08-cv-00824-JSW Document 90 Filed 02/28/2008 Page 2 of 54 Joshua Koltun ATTORNEY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 uncensorable Wikipedia for untraceable mass document leaking and analysis I believed the project had important potential as a tool to assist human rights activists. I was interested in volunteering some of my time and energy as a scholar, activist and writer to analyzing the authenticity and significance of purportedly leaked documents with potential human rights implications. 3. There are a large number of domain names that contain the term Wikileaks, all of which resolve to the same Wikileaks website. Prior to its being taken down by this Court s permanent injunction, the Wikileaks.org name was by far the most commonly used domain name. Wikileaks is a website that uses wiki software. Wiki software allows users to create, edit, and link web pages easily, and enables the creation of collaborative websites. Wiki software enables the creation of a website in which any member of the public can create pages, as well as enabling members of the public to delete or modify pages created by others. Websites employing such software (and there are different versions of such software) are often themselves referred to as wikis. Wikipedia, an online encyclopedia, is one of the best known wikis, but there are many other wikis. 4. The Wikileaks project, as I understood it, was primarily designed to provide a wiki that whistleblowers and human rights activists could use to anonymously leak documents with important human rights implications to the public. Anonymity is essential to the project since in many repressive regimes, any such whistleblower would face severe reprisals for disclosing human rights violations or other government wrongdoing, such as, for example, misuse of Western aid. 5. At the same time, however, a necessary corollary of such anonymity is that it is difficult to determine whether any purported leak is authentic, or to determine what the significance of such a document is. The power of a wiki is that it provides not only the mechanism to leak the document, but also a forum for any member of the public who may have knowledge relevant to the leak to critique, debunk, and analyze the document for this purpose. Allowing such critiques and analyses to be submitted anonymously enables knowledgeable people who themselves may reside under the regime in question to provide valuable information with which to evaluate and understand such leaks, if indeed that is what they are. As the Wikileaks site explains, If a document comes from the Chinese government, the entire Chinese dissident community and diaspora can freely scrutinize and discuss it; if a document arrives from Iran, the entire Farsi community can analyze it - 1 - Declaration of Daniel Mathews CV08-0824 JSW
Case 3:08-cv-00824-JSW Document 90 Filed 02/28/2008 Page 3 of 54 Joshua Koltun ATTORNEY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and put it in context. 6. Thus, as documents appeared through Wikileaks which were interesting to me, I occasionally contributed to analyses and articles about them, when I had the time and energy. In 2006, a document was leaked to Wikileaks that was purportedly written by Sheik Aweys, a leader of the Union of Islamic Courts, one of several entities that had been vying for power in the Somali civil war. On its face, the document proclaimed an Islamic Republic in Somalia, and stated whosoever leaks this information and is found guilty should be shot. I contributed, along with others, to writing an analysis of this document in the context of the larger Somali political situation, including an analysis of whether the document was authentic. A version of the article (largely written by me) is still posted on the Wikileaks website. Attached hereto as Exhibit A is a true and correct copy of the article presently on the Wikileaks website. In the nature of a wiki, the article may have been edited by others since it was originally posted, although it appears that any editing was minor. Said S. Samatar, Professor of African History at Rutgers University, stated that This is a remarkably well researched and written piece. Informative, lucid and incisive. 7. In 2007, a document was leaked to Wikileaks that showed the extent to which the family and associates of the former Kenyan President Daniel Arap Moi had siphoned off over two billion dollars of state money into a web of shell companies, secret trusts and frontmen in countries around the world, including the Cayman Islands and Switzerland. Attached hereto as Exhibit B is the current version of that article as posted on the Wikileaks website. The report had been commissioned by the President of Kenya, Mwai Kibaki, but had later been suppressed and had never been released publicly. I and others contributed to an analysis of the document and of corruption in Kenya that concluded that the document was genuine. The leaked documents and the resulting story were widely reported in the international media. The documents (and the failure to publicly release them) discredited President Kibaki s pledge to turn a new leaf in rooting out corruption. 8. I had no involvement in the leaking of the Julius Baer documents. I have not commented on or edited these documents. I never read any of the Julius Baer documents, until I was served with some of them as attachments to the Complaint, at which point I only skimmed them. I do not know who submitted the documents to Wikileaks other than Julius Baer s contention that they - 2 - Declaration of Daniel Mathews CV08-0824 JSW
Case 3:08-cv-00824-JSW Document 90 Filed 02/28/2008 Page 4 of 54 Joshua Koltun ATTORNEY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 were submitted by Rudolf Elmer. 9. The Wikileaks site claims that it uses generally available wiki software combined with elements of cryptographic software to mask the identities of those who wish to submit documents. I am not a software engineer or programmer and have no relevant technical programming or networking skills or knowledge. I do not know what software is actually used on the Wikileaks site(s), nor do I know whether the cryptographic capabilities of the software are as advertised. I do not know where the servers are that run any of the Wikileaks wiki software, although I have read recent news reports indicating that the servers are in Sweden. I do not who is in control of these servers. There are many domain names that resolve to the Wikileaks website, some of which contain the name Wikileaks and some of which do not. I have no understanding of the technical mechanisms whereby various Wikileaks sites all mirror each other, although I am aware that multiple mirror domain names were created well in advance of the instant litigation, in order to help users in China evade attempts by the Chinese government to block their access to the Wikileaks site. 10. I understand that any member of the public, including Plaintiffs, can post comments regarding the Julius Baer documents, edit the documents, or delete them. As far as I am aware, Plaintiffs have never attempted to do so. I also understand that (as with any wiki) any such commenting, editing or deleting can be easily reversed by someone else. Whoever submitted the Julius Baer documents in the first place (presumably Rudolf Elmer) can always resubmit the 19 documents. I do not have any ability to irreversibly delete the Julius Baer documents, or to block 20 21 22 23 24 25 26 27 28 the documents from being resubmitted by Rudolf Elmer or anyone else. 11. On February 13, 2008, I was served via email (and also personally) with the Summons, Complaint, and other papers in this action. The emails from Plaintiffs counsel stated that I was a WL Officer. I am not an officer of Wikileaks or any other formal or informal organization responsible for the administration or management of Wikileaks. The Wikileaks site lists members of an advisory board, but I am not listed as, and am not, one of them. I immediately responded that I did not know why I was being served with the documents, but that I presume[d] plaintiffs counsel had served me with the summons because I am a registered user of the wikileaks website and have written some material there. But I have no other connection to this case, have not read the documents - 3 - Declaration of Daniel Mathews CV08-0824 JSW
Case 3:08-cv-00824-JSW Document 90 Filed 02/28/2008 Page 5 of 54 Joshua Koltun ATTORNEY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 from Bank Julius Baer which are the subject of this case, have not written anything about them, and generally know very little about the case. 12. Plaintiffs counsel responded: Wikileaks lists you as an officer of the company on its Facebook page. As an officer of a defendant in this action, my client is entitled to serve you a copy of the summons and complaint pursuant to Rule 4(h)(1)(B) of the Federal Rules of Civil Procedure. Facebook is a website created for college students (and now used by others) as a social networking site. The Wikileaks website had invited people to start discussion groups on Facebook and other websites. The Facebook page at issue had identified me as the Stanford rep. of the discussion group, and the Facebook term officer has no significance; the fact that I am an admin merely indicates that I was a moderator of that discussion group. I responded to Plaintiff s counsel: I am an officer of a facebook group, which is essentially a message board for discussion of issues relating to wikileaks. I am not, and never have been, an officer of wikileaks, and I request you not to represent that I am. Nevertheless, on February 22, 2008, Plaintiffs counsel declared to this Court that Plaintiffs served a copy of the TRO and OSC on the Wikileaks Defendants via e-mail, per the Court s prior order, to the personal e-mail address for a listed officer of Wikileaks. 13. I never had any communications with Julie Turner, who Plaintiffs contend was Wikileaks attorney, about this case or any legal matter. I did not obtain legal representation in this matter until after the Court s deadline to file opposition to the TRO had passed. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed on February 28 at San Francisco, California Daniel Mathews 28 Declaration of Daniel Mathews - 4 - CV08-0824 JSW
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